1. This Rule is directed against an order passed by the Munsif, Second Court, Tamluk, on the 13th November 1926. The petitioners had applied under Order 21, Rule 100, Civil P.C., in connexion with an execution case that was pending in the Court of the learned Munsif. The application was registered as a claim case and was taken up for hearing on the 2nd July 1926, when the decree-holder, not having appeared the petitioners' claim was allowed. On the 22nd July 1926 the decree-holder filed an application under Order 9, Rule 13, Civil P.C., for setting aside the aforesaid ex-parte order and for the re-hearing of the claim case. The learned Munsif dealt with this matter on the 13th November 1916. He came to be of opinion that there was some mistake somewhere in consequence of which the decree-holder was unable to appear on the day on which the claim case was heard. He held, however, that Order 9, Civil P.C., was not applicable to applications arising out of execution proceedings, and in that view of the matter he was unable to give relief to the decree-holder under the provisions of that order. He thought that in obtaining the ex-parte order the claimants had not put the whole case before the Court and accordingly this was a matter which called for the exercise of the Court's powers under Section 151, Civil P.C. In this view of the matter he ordered the claim case to be restored to file. It is this order against which the present rule is directed.
2. Now, in the judgment of this Court in Sarat Krishna Bose v. Mitra A.I.R. 1927 Cal. 1927, to which I was a party, it was held on a discussion of the authorities bearing upon the subject that Order 9, Civil P.C., is not applicable to applications arising out of execution proceedings and it was further observed that in cases where there is no remedy provided for by the Code when such an application is dismissed for default and there is nothing in the Code to suggest that no remedy should be given, the Court may very well in a proper case resort to the provisions of Section 151, Civil P.C. On behalf of the petitioners it is contended that a remedy in this particular case is provided for by the Code itself, inasmuch as an aggrieved party may institute a suit to establish the right which he claims in the claim case in accordance with the provisions of Rule 103, Order 21, Civil P.C. That no doubt is so; but a suit contemplated under that rule is one which may be instituted after a due and proper investigation of the matter in accordance with Rule 100, Order 21 of the Code, where the matter has not been so investigated but has been disposed of on default on the part of one or other of the parties the remedy by way of suit is hardly a remedy for the dismissal by default, but is merely a further step which the law provides for all unsuccessful parties in such cases. I am accordingly of opinion that it cannot be said that the provision with regard to the suit to which reference has been made on behalf of the petitioners in any way stands in the way of the applicability of the provisions of Section 151 of the Code. In the case to which I have referred it has been laid down that where there is no provision in the Code expressly providing for a remedy and none which prohibits a remedy being administered and such remedy is called for in order to do that real and substantial justice for the administration of which it exists, the provision of Section 151 may and should be resorted to. In this particular case the learned Munsif was of opinion that all the facts had not been properly brought to his notice and being of that opinion he thought fit to exercise his powers under Section 151 of the Code. The only defect in the procedure which the learned Munsif adopted appears to have been this that it did not give the petitioners an opportunity of being heard in connexion with these proceedings. Ordinarily, that would have been a good ground for our interference. But in view of the fact that he is the same officer who thought that the facts were not properly placed before him and also in view of the fact that after all the whole matter will now be beard on its merits in the presence of both the parties, I do not think the case calls for the interference of this Court.
3. For these reasons, I would discharge the rule. The opposite parties not having appeared there will be no order as to costs.